Vijay Kumar Pandey vs Panacealife Helthzone Pvt Ltd & Ors

NATIONAL COMPANY LAW APPELLATE TRIBUNAL PRINCIPAL BENCH, NEW DELHI Company Appeal (AT) (Insolvency) No. 291 of 2022 IN THE MATTER OF: Vijay Kumar Pandey ...Appellant

Versus Panacealife Healthzone Pvt. Ltd. & Ors. ...Respondents

Present: For Appellant: Mr. Akhilesh Kalra, Advocate For Respondent: Mr. Abhijeet Sinha, Advocate for RP Sr. Advocate Malvika Trivedi, for R-1 Advocate Shatadru Chakraborty, for CoC Advocate Charu

ORDER

(Virtual Mode) 24.03.2022: Heard Learned Counsel for the Appellant, Learned Counsel for

the Resolution Professional and Learned Counsel for the Committee of Creditors.

2. This Appeal has been filed against the Order dated 14.12.2021 passed by

the Adjudicating Authority (National Company Law Tribunal, Allahabad Bench)

in I.A. (IB) No. 98/ALD/2021. This application was filed by the Resolution

Professional for approval of the Resolution Plan which has been allowed and the

Resolution plan in respect to Corporate Debtor has been approved.

3. Learned Counsel for the Appellant challenging the Order contends that the

Appellant was one of the ex-directors of the Corporate Debtor and was running

the Hospital. Though the Hospital was permitted to be run by the Indian Medical 2

Association under the directions of the Government to one Dr. Mall who had run

the Hospital during the Covid 19 period and subsequently the said Dr. Mall

submitted the Resolution Plan which has been approved. It is submitted that

Appellant who also wanted to submit a Resolution Plan was never permitted to

submit a Resolution Plan and his proposed Resolution Plan was not even

considered. He submits that the Resolution Professional has not performed its

duties as entrusted under the provisions of Section 25 of the Code since he has

not taken possession of the documents and the assets of the Corporate Debtor

and at no point of time possession was taken hence there was material

irregularity in conduct of proceeding of Resolution Professional which is a ground

for disapproving the Resolution Plan.

4. Mr. Abhijeet Sinha, Learned Counsel for the Resolution Professional

refuting the submissions of Learned Counsel for the Appellant contends that

Hospital was closed before initiation of Corporate Insolvency Resolution Process

(CIRP in short) and due to the Covid 19 the Government took a decision to run

the closed Hospital and under the direction issued by Administration the Indian

Medical Association with the help of Dr. Mall started to run the hospital during

the Covid 19 Period and after initiation of CIRP the Resolution Professional was

given all relevant documents and the Hospital was run under the directions of

the Government. He further submits that the Appellant as an ex-director, who

also participated in the Meetings of the CoC and he was requested to submit his

plan and his proposal was duly considered by the CoC and deliberated and it

was resolved that Appellant may submit a plan if otherwise eligible under Section

Company Appeal (AT) (Insolvency) No. 291 of 2022 3

29A of the Code. It is submitted that no plan was even submitted by the

Appellant and the offer which was given by the Appellant was only of Rs. 1 Crore

which was too less than the plan which has now been approved. Mr. Abhijeet

Sinha, Advocate submits that the Appellant has attended 04th Meeting of the

CoC although notice of all meetings was given. Mr. Abhijeet Sinha submitted

that all financial claims have already been updated and included in the

Memorandum.

5. Learned Counsel for the CoC has also supported the submissions of

Learned Counsel for the Resolution Professional and submits that Appellant was

not eligible to submit a plan and no plan was actually submitted. He further

submits that Resolution Plan which was submitted by the Resolution Applicant

was fully compliance with all the provisions of the Code and Dr. Mall was never

ineligible to submit a plan and the CoC after considering all aspects of the matter

has approved the plan with 100% voting share whereas the claim of the Appellant

was considered and rejected by the CoC with 100% Voting Share.

6. We have considered the submissions of the Parties and perused the record.

7. The present is the case where Order of the Adjudicating Authority

approving the Resolution Plan is under challenge. In so far as the claim of the

Appellant regarding non-consideration of his plan is concerned, suffice it to say

that the Appellant was himself present in the fourth Meeting of the CoC. In this

Context, 04th Meeting of CoC dated 15th December, 2020 is referred where issues

Company Appeal (AT) (Insolvency) No. 291 of 2022 4

raised by Appellant and his proposal Application 21st November, 2020 were

considered. The minutes of the meeting in this regard are following:

"In view of the all the above points the CoC was not in favour of considering the application/proposal regarding dropping/deferring the CIRP against Panacealife healthzone Pvt. Ltd. and was not satisfactorily convinced with the submission of Mr. Vijay Kumar Pandey. Rather, CoC alleged that the entire applications and proposal is farce and the same have been filed before the Hon'ble Adjudicating Authority to create hindrances in CIRP process of the Corporate Debtor and to make mockery of the IBC and legal system. Still CoC recommended to Mr. Vijay Kumar Pandey that if he is willing to take over the Corporate Debtor, he may file the proposal by way of submission of Resolution Plan provided he is eligible as per the eligibility criteria approved by CoC under the provisions of Section 25(2)(h) of IBC, 2016.

To all the above points raised by CoC, Mr. Vijay Kumar Pandey stated that unintentionally certain mistakes were happened. Despite all the above shortcomings, still he is intended to make the request to the Coc to consider his proposal, which CoC after further deliberation denied to accept but reiterated that he may file the proposal by way of submission of Resolution Plan provided he is eligible as per the eligibility criteria approved by CoC under the provisions of Section 25(2)(h) of IBC, 2016. Mr. Vijay Kumar Pandey concurred and he stated that he will discuss the same with his legal advisor and will file the Resolution Plan, accordingly."

8. Thus, the grievance of the Appellant that his plan was never considered

does not appear to be correct. No formal resolution plan was submitted by the Company Appeal (AT) (Insolvency) No. 291 of 2022 5

Appellant although the COC has permitted the Appellant to submit his plan

provided he is eligible as per the eligibility criteria approved by the CoC. Thus,

grievance of the Appellant that his offer was never considered has no merit.

Appellant can not make any complaint on the aforesaid account.

9. The submission which has been pressed by Mr. Kalra is that Resolution

Professional never took possession and control of the Hospital which is a

statutory duty entrusted on him under the Code. It has been stated that

Resolution Professional visited the hospital and prayed for taking over the

documents but he was never handed over the relevant documents in the said

regard. From the facts, which has been brought on record it does appear that

the Resolution Professional after the 2nd CoC meeting has visited the Hospital

and obtained the permission of CMO and met Dr. Mall who was at that point of

time running the hospital. The present is the case of running of a hospital, the

Resolution Professional is not supposed to take physical possession of the

hospital for running the hospital in the facts of the present case. The visiting of

the Resolution Professional and all steps taken by the RP has duly been noted

and considered by the CoC in 04th Meeting and subsequent meeting which

indicate that what was expected by the RP was duly performed. Advertisements,

Steps pertaining to issue of Notice under Form G and other steps have duly been

taken by the RP and in pursuance of which the Resolution Plan was submitted

which got approval by the CoC with 100% Voting Share. It is the commercial

wisdom of the CoC to take a decision as to whether Resolution Applicant is

eligible to run the Corporate Debtor and whether the financial offers and other

Company Appeal (AT) (Insolvency) No. 291 of 2022 6

offers given by the Resolution Plan are sufficient to approve and comply the

mandates given in the statutory scheme. The Adjudicating Authority in its

Judgement has elaborately considered the details of the Resolution

Plan/Payment Schedule in Paragraph 5 and has also recorded his satisfaction

regarding all other aspects of the matter including the statutory compliance by

the Resolution Plan. We do not find any error in the Order impugned of the

Adjudicating Authority approving the Resolution Plan. The Commercial wisdom

of CoC has to be given due regard. We are of the view that no grounds have been

made out to interfere with the Impugned Order in exercise of our Appellate

Jurisdiction, the Appeal is dismissed.

[Justice Ashok Bhushan] Chairperson

[Dr. Alok Srivastava] Member (Technical)

[Ms. Shreesha Merla] Member (Technical)

Basant/nn Company Appeal (AT) (Insolvency) No. 291 of 2022